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Building a Diverse Bench: Selecting Federal Magistrate and Bankruptcy Judges

While the federal judi­ciary over­all has become more diverse, magis­trate and bank­ruptcy courts continue to lag behind. Federal judges appoint and re-appoint magis­trate and bank­ruptcy judges, so the judi­ciary itself can address this prob­lem. This manual focuses on simple changes that can strengthen the applic­ant pool and the candid­ates selec­ted for judge­ships. Recog­niz­ing the already-heavy work­load of federal courts, it outlines a set of best prac­tices recom­men­ded by an advis­ory commit­tee of federal circuit court, district court, magis­trate, and bank­ruptcy judges, as well as circuit exec­ut­ives, clerks of court, and other court experts. Hon. Frank J. Bailey, a judge for the U.S. Bank­ruptcy Court for the District of Massachu­setts, wrote the fore­word. 

Read the intro­duc­tion


INTRO­DUC­TION

The major­ity of Amer­ic­ans who encounter federal courts do so before a magis­trate or bank­ruptcy judge. With author­ity under Article I of the U.S. Consti­tu­tion, magis­trate and bank­ruptcy judges adju­dic­ate an extens­ive range of issues. Bank­ruptcy judges, who sit for renew­able 14-year terms, adju­dic­ate nearly all bank­ruptcy cases and proceed­ings in the first instance. Magis­trate judges, who sit for renew­able 8-year terms, handle a wide range of crim­inal and civil matters — from setting bail, to conduct­ing settle­ment confer­ences, to hear­ing motions –– and can even decide federal civil cases with the consent of the litig­ants. The breadth of magis­trate and bank­ruptcy judges’ respons­ib­il­it­ies corres­ponds with case­loads and appoint­ments that outnum­ber their Article III peers. In aggreg­ate, there are 925 active magis­trate and bank­ruptcy judges, compared with 795 active district and circuit court judges.

Diversity is an essen­tial element of a success­ful judi­ciary. Judges’ personal and profes­sional exper­i­ences affect how they approach the cases that come before them. Bring­ing diverse perspect­ives to bear fosters decision-making that reflects the exper­i­ences of the whole popu­la­tion, result­ing in better juris­pru­dence. A diverse bench also promotes public confid­ence that the judi­cial system is fair and object­ive. When the judi­ciary includes all voices and perspect­ives, members of the public are more likely to trust that theirs will be heard as well. Diversity on the bench has the added bene­fit of estab­lish­ing role models for all groups by show­ing that indi­vidu­als from diverse back­grounds can obtain judi­cial posi­tions, as well as posi­tions of prom­in­ence in the bar. It is for these reas­ons that the federal judi­ciary has made diversity a prior­ity and the Amer­ican Bar Asso­ci­ation (“ABA”) passed Resol­u­tion 102 call­ing upon circuit and district courts to build diversity on the magis­trate and bank­ruptcy benches.

While the federal judi­ciary over­all has become more diverse, magis­trate and bank­ruptcy courts continue to lag behind. Women comprise over half of the U.S. popu­la­tion, but only a third of magis­trate and bank­ruptcy judges. People of color comprise almost 40 percent of the popu­la­tion but only 15 percent of magis­trate judges and 7 percent of bank­ruptcy judges. While the stat­ist­ics for gender diversity in the magis­trate and bank­ruptcy courts are compar­able to Article III courts, they trail Article III courts in racial diversity, where nearly a quarter of judges are people of color. Given that many Article III judges begin their judi­cial careers as an Article I judge, address­ing diversity on the Article I bench may also help the trend to diver­sify the Article III bench.

Inad­equate diversity among magis­trate and bank­ruptcy judges is a prob­lem the judi­ciary can address. While the Pres­id­ent, with the advice and consent of the Senate, appoints judges to many Article I courts — such as the Court of Federal Claims, the United States Tax Court, and the Court of Veter­ans Appeals — Article III judges are respons­ible for the appoint­ment and re-appoint­ment of magis­trate and bank­ruptcy judges. Magis­trate judges are selec­ted by a major­ity vote of the district court judges in the juris­dic­tion in which they sit from a list of candid­ates recom­men­ded by a merit selec­tion panel –– a group of lawyers and other community members selec­ted to vet candid­ates. Bank­ruptcy judges are appoin­ted by a major­ity vote of the circuit court judges in the juris­dic­tion in which they sit upon the recom­mend­a­tion of the judi­cial coun­cil — a group of court of appeals and district court judges, chaired by the chief judge of the circuit. While reli­ance on a merit selec­tion panel is optional for the selec­tion of bank­ruptcy judges, in prac­tice all circuits use one to vet and recom­mend candid­ates, and often even use addi­tional meth­ods of screen­ing.

This resource provides concrete guid­ance on the steps courts can take to increase diversity among magis­trate and bank­ruptcy judges. Although there are rules regu­lat­ing the process, district and circuit courts have wide discre­tion in their proced­ures. By actively recruit­ing candid­ates from across the legal profes­sion and taking steps to ensure the fair eval­u­ation of all candid­ates, Article III courts can help build an even stronger judi­ciary.

The best prac­tices listed below reflect lessons, recom­mend­a­tions, and research provided by judges, court exec­ut­ives, advoc­ates, and schol­ars. In partic­u­lar, they reflect the advice of an advis­ory commit­tee composed of federal circuit court, district court, magis­trate, and bank­ruptcy judges, circuit exec­ut­ives, clerks of court, and court experts assembled to share their expert­ise and vet the recom­mend­a­tions contained herein. In recog­ni­tion of the already heavy work­load of federal courts, this manual focuses on simple changes that can have an outsized impact on the strength of both the applic­ant pool and the candid­ates selec­ted.